Nebraska

September 18, 2013

Let’s just say, Ben Nelson was never my
favorite U.S. Senator. While Nebraska’s
insurance commissioner in the 1970s, he supported one of the cruelest medical
malpractice compensation caps in the nation, –
the impact of which was highlighted in the HBO documentary film, Hot
Coffee. One thing I’ll say for him, though. He never supported federal caps. Don’t get him wrong, he likes caps
alright. He just felt that states did a
better job wiping out patients’ legal rights, making sure taxpayers pick up the
tab when negligent hospitals and doctors maim people.

If nothing else, Ben Nelson is consistent. This would be unlike others in Congress who still
want to impose Draconian “caps” on all of us.
Check out the new Republican Study Committee proposal to repeal
Obamacare (because it’s a federal takeover of state healthcare) while supporting
a national $250,000 cap on non-economic damages (because it’s a federal takeover of state
medical malpractice laws). Apparently, consistency
is not the point.

According to Bloomberg, Ben Nelson showed up at their New York offices the other
day for an interview. This consistent
states’-rights guy is now head of the National Association of Insurance
Commissioners, and he made clear that he doesn’t want Congress regulating the
insurance industry. Well, yeah, I have
to say, not this Congress. Nelson’s reasons were “Jeffersonian.” Mine are less philosophical. If you care about the lives of everyday
people, the current U.S. House of Representatives
is not the body you want in control. Sad
but true.

The federal role in insurance regulation is
already expanding under the Dodd-Frank law. The Federal Reserve will oversee
insurers that are deemed systemically important by the Financial Stability
Oversight Council, which was created by Dodd-Frank to prevent another financial
crisis. U.S. insurers are primarily overseen by state regulators.

But here’s another issue. As NAIC head, he should be held fully
responsible for the NAIC’s “Affordable Care Act Medical Professional Liability
(C) Working Group,” which, from what we can tell, is going to result in an idiotic
(not to mention biased) analysis of Obamacare’s impact on the med mal
insurance market. This working group has
no consumer representation. It’s hearing
almost entirely from insurance industry representatives, like the Physicians
Insurance Association of America, which is running around Congress
and elsewhere saying things like the law is going to stop doctors from doing all the “defensive
medicine” tests that their doctors want to do.
So claims will go up. In other
words, errors will go up. In other
words, what they call “defensive” medicine is actually good medicine that
prevents errors.

But the real irony is that the litigation
position of some liability insurers is the exact opposite of this. Some of them are
now trying to get out of paying claims, claiming that Obamacare (including the
tax-payer assisted parts) should pay for the injuries that their clients cause.
Complaining about the law for supposedly increasing claims, while trying
profit from the law by not paying claims.

September 20, 2012

For all you zealous government budget cutters out there,
remember this old adage: sometimes, an ounce of prevention is worth a pound of
cure. Translated into more modern
budget-cutting jargon, government money spent to prevent horrendous injuries or
death saves taxpayers boatloads of money in the long run, not to mention priceless amounts for the families involved.

Today, it was reported, “The family of a 7-year-old Omaha
[Nebraska] boy who died in 2010 when a falling tree branch struck his head has reached a
settlement with two governments to receive $155,000.” The family had asked for $3 million. At least they
received something for the life of their child.

The little boy lived on property owned by the Omaha Housing
Authority. Reportedly, “OHA
officials have said they were not sure whether the housing authority or the
city was responsible for inspecting and maintaining the tree.” Well, maybe now they’ll figure it out
because tragedies like this are preventable if governments do their jobs properly. That’s what other cities have started
to figure out, as well.

In Illinois, metallic-green beetles have been "wiping out ash
trees across the region” and “municipalities are spending thousands of dollars
to remove and replace trees.”

“They have no choice but to spend the money on it because
otherwise it becomes a huge liability,” said Julieann Heminghous, emerald ash
borer outreach coordinator for the state.

Financially, it is more sound to remove trees before they
fall and damage property or injure or kill someone, she said.

Similarly in New York City, following a devastating 3-part
series about horrendous injuries and deaths due to falling trees in city parks,
and “[a]fter years of declining budgets for the care of New York City’s street
trees, city officials and lawmakers more than doubled the amount for the fiscal
year that began" in July, 2012.

That’s a welcome change from the attitude of some city
lawyers who, according to the earlier series,

[H]ave aggressively fought several of the cases, denying
blame in what they called tragic accidents. They argued that the city was not
required to regularly conduct state-of-the-art inspections to determine whether
trees were rotting or disease-ridden.

Tree-care experts say the testimony and records raise broad
safety questions nationally. Preventive care of urban trees has been a budget
casualty from Philadelphia to Chicago to San Jose. “It’s a problem here and
everywhere,” said Douglas Still, the chief city forester in Providence, R.I.
“Pruning programs are being cut, not increased.”

Some tree-care experts fear cuts will bring more accidents —
and damage payouts. “It’s an old adage — an ounce of prevention is worth a
pound of cure,” said Randall Swanson, a forestry professor at Paul Smith’s
College in upstate New York. “Preventative measures can go a long way toward
reducing the possibility of tree-related injuries.”

May 21, 2012

I realize a lot was expected of me. I am fully aware that each of my seven predecessors were unceremoniously sacked for failing miserably in their one task – trying to destroy the award-winning documentary film, Hot Coffee.

Now without making any excuses, I do think we should ask ourselves how this happened. I realize that we’re terrible at making films that anyone wants to watch. But we’re supposed to own the narrative on “tort reform.” That’s why we produce expensive movie ads, make our own commercials and create our own newspapers. No one’s supposed to hear the other side of this, let alone millions of HBO/DVD viewers! Plus the film just won an award from that pinko Hollywood outfit, the Emmy’s. That won’t help.

Problem is, trying to damage the film now – over a year since its Sundance premiere and after much acclaim in the meantime - is probably insane. But when ATRA’s and ALEC’s Victor Schwartz came begging, still miffed that the film used sound bites of things he actually said, I thought well, we still have boatloads of cash. Let’s see how far we can get once again re-arguing (this time in webisodes) McDonald’s case – a case that the jury didn’t believe, a case that the judge and jury both rejected, and which led the judge, in refusing to grant a new trial in the case, to call McDonald's behavior “callous. We thought if we upped the star power by having Victor’s corporate law partner join in, and then promoted it all with some Google and Facebook ads … well, what’s the harm?

Unfortunately, some people have now brought to my attention a few “inconvenient” facts that … again – I beg you, please don’t make me #8.

First, you know how the whole last part of our little project (that would be webisode 6) accuses Hot Coffee of misleading viewers on how Jamie Leigh Jones got her case before a jury, saying that Sen. Al Franken’s efforts had nothing to do with it? What, did we have pre-schoolers doing the research on this? Because I just found a March 23, 2010 article from the Minneapolis Star Tribune, where KBR itself essentially confirms exactly what Hot Coffee says, specifically:

In a victory for Minnesota Democrat Al Franken, military contractor KBR has decided to drop a Supreme Court appeal in the case of a former company clerk who alleges she was raped by co-workers in Iraq. KBR's decision represents the first significant legal fallout from the "Franken amendment," which protects defense workers from being forced to accept arbitration after suffering sexual assault, battery or discrimination. The measure became the subject of a testy Senate battle that reverberated in legal circles and in popular culture as the subject of a Jon Stewart rant on cable TV's "The Daily Show."

KBR, which has sought to handle Jamie Leigh Jones' claim out of court, acknowledged Tuesday that its appeal might violate the amendment. …

Although the incident happened five years ago, when Jones was 20, the company could still be covered by the Franken amendment, which was intended to bar defense contracts to companies that enforce new or existing arbitration agreements in cases such as Jones'.

And then there’s the part where we say that overall damages caps (including compensation limits for economic losses) are so rare that focusing on Nebraska’s law (as applied in the Gourley’s birth injury case) was “misleading” and an example of using “slight of hand.” How was I supposed to know that just as our ads were hitting Facebook and Google, a jury verdict was coming down in a whole other state – Virginia – which also has this kind of cap? And now, just like in the Gourley’s case, this verdict is gonna be drastically cut, too! Economic damages! Hey, I’m not omniscient. I can’t control the timing on these things.

The Virginia case also involved a severe birth injury due to negligence by doctors, where the jury decided the child needed $9 million for a lifetime of care – but due to the cap, she’ll get a fraction of this. Now, I’m not complaining. Believe me, you won’t ever find us lobbying to repeal overall caps no matter how “extreme” we say they are. So here’s what happened in Virginia:

… Marissa [Simpson, Marsha's daughter] was born with dangerously low blood pressure, and with a loss of one-third to one-half of her normal blood amount. Additionally, her kidneys had been destroyed, and she suffered a brain injury from lack of oxygen. To date, Marissa has undergone two kidney transplants, and she has cerebral palsy. The attorney said the decision to induce was negligent, and once complications arose, doctors should have acted more quickly.

The family has spent more than $1.75 million to provide care for Marissa. Expert witnesses testified they could spend up to $8 million in the future.

[Attorney] Krasnow said he anticipates the defense will file a motion to ask Judge William Broadhurst to follow Virginia law, which caps the damages recoverable at $1.4 million each for Marsha and Marissa Simpson.

Let’s just hope this case doesn’t make it into the new edition of the Hot Coffee DVD extras. And by the way, when we say the 7th Amendment doesn’t mean juries get to decide damages in civil cases, just don’t tell the guy who came up with the constitutional arguments that we use for repeal of the health care law. He doesn’t agree with us.

I do want to emphasize that when we complain about using “subjective opinions to reach forgone conclusions,” pointing out that “flapjacks have two sides,” we are limiting our comments exclusively to Hot Coffee. I’ve heard some complaints that these words could actually apply to us, since we clearly only use “subjective opinions to reach forgone conclusions.” Please do not worry. By no means do we have any intent of ever engaging in flap jacking.

July 26, 2011

Wanna know how long ago 1976 was? For the first three months of that year, Apple Computer Inc. didn’t even exist. Steve Jobs, Steve Wozniak, and Ronald Wayne started Apple on April 1, 1976 to sell the Apple I personal computer kit, pictured here. That’s how long ago 1976 was.

Imagine if what we knew in 1976 was the way it would be forever. Hard to imagine, except if you happen to be a patient living in Nebraska who has experienced severe medical negligence. In 1976, Nebraska legislators were pressured by the state’s insurance and medical lobbyists to enact a draconian “cap” on compensation for patients. This is not just any kind of cap. This cap limits even what families can get to cover a lifetime of medical and out of pocket expenses to take care of a catastrophically-injured child. So these children end up on Medicaid, and you (Nebraska tax-payer), end up paying for damage caused by a reckless health care provider.

The cruel impact of this cap on one family – the Gourley’s - was illustrated in the documentary film Hot Coffee, which we’ve covered often at ThePopTort (e.g., here, here). The Gourley’s are an awe-inspiring family (e.g. here, here) and the Center for Justice & Democracy has helped them with a new project called Caps Harm Nebraska, to educate the public about this cap. Here’s their new Facebook page, which is a great way to learn more and to help.

Back in 1976, Nebraska legislators may not have realized the cruel impact of a cap like this. They may not have understood the burdens it would place on Nebraska taxpayers. They may not have known about the cyclical nature of insurance rates, which go up and down irrespective of a state’s “tort” law. That’s OK. As Steve Jobs would tell you, we’ve learned a lot since 1976. We hope Nebraska lawmakers take a second look at this. It’s only 2011 – it’s not too late.

February 24, 2010

Lisa Gourley has had her share of hardships. Her son Colin was born with severe brain damage due to a doctor's negligence. But because Nebraska has a Draconian "cap" on compensation for all injured patients (i.e., "tort reform"), her family never received the compensation needed to take care of Colin. She bravely challenged the constitutionality of this law, taking her case all the way to the Nebraska Supreme Court. Unfortunately, in 2003 the Court sided against her and upheld this cap.

Now, she has to read stories like this one, that omits entirely any mention of the price so-called "tort reform" has on actual patients, hundreds of thousands of whom are injured by medical malpractice each year - many involving catastrophically-injured children like Colin.
Lisa wrote to the reporter and with her permission, I'm re-posting her letter - raw, unedited, brutally honest and straight from the heart.

Joe,

Interesting enough there was not one interview of a victim in your article.... I sure hope that you or nobody in your family ever is faced with the horrible ramifications of medical malpractice because at the rate this country is headed there will be little to NO remedy for the injured person. I wish you would have at least taken the time to talk to a person who was actually affected by medical malpractice.

My son suffered a catastrophic brain injury due to a doctor's negligence. Colin struggles every day with walking, talking and cognitive thinking. He will never be able to work a job to provide an income for himself. He will never live the life his identical twin brother has because of this negligence. The doctor was found negligent and Colin was compensated $1.25 million dollars to pay for his projected medical expenses of $12.4 million, lost wages and the pain and suffering he endures everyday of his life. That is hardly fair.

After my husband lost his job, two years ago and we lost our health care coverage because we couldn't afford $1,700 a month for the cobra insurance, Colin now relies on Medicaid and the Nebraska Medically Handicap Children's program to pay for ALL of his care. Yes, the TAXPAYERS and our family is paying for the majority of this negligence not the doctor and insurance company. Somehow this just isn't fair....

In 1999, when the doctor was found negligent the excess liability fund had $63 million dollars, it had paid out $4 million in claims and had earned $10 million dollars in interest. They could have easily paid the claim to our son and not left the financial burden on our family and the taxpayers but because of the horrible law here in Nebraska, the medical community and insurance companies are getting financial bailout. This is hardly the ideal system that should be looked at for the rest -of the country.
I would be happy to talk with you further and give you insight from a victim's point of view.

June 22, 2009

As promised, we’re continuing to follow the Chrysler/GM bankruptcies (and in particular, developments involving the “bankruptcy loopholes” which effectively immunize both companies from lawsuits should defects in the “old” pre-bankruptcy Chrysler GM/vehicles injure or kill people). Here are some notable press items from the past few days…

Attorneys General from Connecticut, Kentucky, Maryland, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Vermont, and West Virginia are standing up for injured consumers, filing objections to the GM bankruptcy last Friday (here, here, here, here).

We hear that other states' AG’s will be coming in to raise similar objections soon.

The Detroit News adds to the ever-growing list of heart wrenching tales about Chrysler/GM defect victims, profiling 20-year-old former athlete, Stevie Beale, who was paralyzed from the waist down due to a faulty seatbelt design in her Pontiac Bonneville.

Lynn LoPucki, a professor and bankruptcy expert at UCLA Law School, who is quoted in the article, said, "They should assume liability for their cars. Instead, they give people a very good reason to not buy their cars”

The Atlanta Journal-Constitution and Macon Telegraph both tell the tragic story Nell and Jimmie Davis whose Jeep Cherokee flipped over, crushing the (defective) roof of the vehicle, and killing Jimmie just eight days before the couple’s 48th wedding anniversary. Nell sued Chrysler, but like so many others, her case is unlikely to go anywhere. “They got all their taxpayer bailout money and now they’re not responsible for anything?” she said.

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